Judge Cans Soda Ban
Ruling on Sugary Drinks Marks Rare Defeat on Health Policy for Bloomberg
By MICHAEL HOWARD SAUL
Wall Street Journal
Bottles of soda are displayed on a shelf in New York earlier this year.
Mayor Michael Bloomberg was dealt a stinging blow on Monday when a state Supreme Court Judge quashed his plan to ban the sale of large sugary drinks in the city's restaurants and other venues.
New York City Mayor Michael Bloomberg speaks to the press after at State Supreme Court judge invalidated the city's plan to limit serving sizes for sugary drinks. (Photo/Video: AP)
At a late afternoon news conference, Mr. Bloomberg and the city's top lawyer, Michael Cardozo, said they believed the judge erred in his ruling and vowed to appeal. The decision was both lauded and criticized by city officials and others.
"It would be irresponsible not to try to do everything we can to save lives," said Mr. Bloomberg, who earlier in the day called for jurisdictions across the nation to follow suit.
New York state Supreme Court Judge Milton Tingling declared invalid Mr. Bloomberg's plan to prohibit restaurants, mobile food carts, delis and concessions at movie theaters, stadiums or arenas from selling sugary drinks in cups or containers larger than 16 ounces. The ban was set to begin Tuesday.
Judge Tingling determined that Mr. Bloomberg exceeded his authority by sidestepping the City Council and placing the issue before the city's Board of Health, a panel whose members were each appointed by the mayor.
Mr. Bloomberg said at the news conference he has no plans to bring the measure before the City Council.
Rick Hills, a law professor at New York University, said, "There's a sense that Bloomberg has an imperial disdain for the City Council, and this ruling says 'no more rule by mayoral decree.'" (Read the full text of the ruling)
The mayor has gone through the City Council first with some of his health initiatives but not with all of them.
In 2006, the Board of Health banned the use of artificial trans-fats in foods and required the posting of calorie counts at chain restaurants. The board's storied history also includes banning lead paint and requiring fluoride to be included in drinking water.
"Our Board of Health has always been a pioneer," Mr. Bloomberg said. "It has always been ahead of the curve, and you would expect nothing less from this city."
Jennifer Pomeranz, director of legal initiatives at Yale University's Rudd Center for Food Policy & Obesity, said she believes there is no legal difference between the trans-fat ban and the sugary beverage serving size restriction.
"The judge got it wrong," she said. "The authority of the department of health is the exact same authority [in both cases]. It doesn't make sense to me that the trans-fat ban is legal, and they struck this down."
While the Board of Health did approve the trans-fat ban, the City Council later voted 47-1 to incorporate the ban into the administrative code, providing express legislative approval of the board's actions.
The mayor went through the City Council approval process to achieve one his biggest public-health initiatives—on smoking. In 2002, Mr. Bloomberg convinced the council to approve a ban on smoking in bars and restaurants. More recently, the mayor convinced the council to extend that ban to parks and beaches, public plazas and marinas.
Doug Muzzio, a professor of public affairs at Baruch College, said the large sugary drink ban wasn't as simple as the smoking ban for the public to understand and support.
"There was irrefutable statistical evidence that smoking is bad for people in innumerable ways," Mr. Muzzio said. "With sugary sodas, the causal chain is less clear. Everybody who smokes suffers some adverse consequences, basically. Not everyone who drinks 16 ounce sodas has a health problem."
Aides to City Council Speaker Christine Quinn, a Manhattan Democrat who is running for mayor, said last year that attorneys for the council reviewed the sugary-drink issue and determined that the Board of Health had the right to impose the regulations. Ms. Quinn has said she personally didn't back this approach, saying she preferred education over restrictions, but she said she would not try to stop the mayor from moving forward.
Other mayoral candidates offered differing views. Public Advocate Bill de Blasio, a Democrat, endorsed the proposal and supports the city's decision to appeal. Bill Thompson, who unsuccessfully attempted to unseat Mr. Bloomberg in 2009 and is running again this year, said the ruling "unmasks Mayor Bloomberg's misguided soda ban policy for what it is: a cosmetic solution to a complex problem."
Judge Tingling wrote that the regulations would "not only violate the separation of powers doctrine, it would eviscerate it."
"Such an evisceration has the potential to be more troubling than sugar sweetened beverages," he wrote.
The judge ruled the regulations are "fraught with arbitrary and capricious consequences," noting how there would be uneven enforcement within a single city block. The regulations didn't affect the Big Gulp at 7-11 because supermarkets and convenience stores are regulated by the state, not the city.
He wrote that regulations exclude other beverages that have significantly higher concentrations of sugar sweeteners and calories on "suspect grounds." The regulations don't limit patrons from getting refills; that provision, the judge said, appears to "gut the purpose of the rule."
At Brother Jimmy's near Union Square, the old 24-ounce glasses had already been thrown out and replaced by those only big enough to hold 16-ounces. "I don't have a problem with the mayor telling us to be more healthy, but I don't think it's his place to ban certain sized glasses," said Matt Hayek, 28, a bartender there.
At AMC Loews Village 7 theater in the East Village, Saul Farber, 27, called the ruling a "victory for personal freedom" as he sipped soda from a recently purchased 44-ounce cup.
Claire Wang, assistant professor of health policy and management at Columbia University's Mailman School of Public Health, said she was "disappointed" by the ruling.
"The city has been on the forefront of trying to push the envelope on what we can do for population health, and from that standpoint it's very courageous," she said. "New York City has done a lot of things in public health that no one has done before, but everyone follows suit."
—Erica Orden, Mara Gay, Danny Gold andJacob Gershman
contributed to this article.
A version of this article appeared March 12, 2013, on page A19 in the U.S. edition of The Wall Street Journal, with the headline: Judge Cans Soda Ban.
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